An Ontario judge has refused a US request for unfettered access to the data on Megaupload servers hosted in Canada. The ruling is another sign that overseas courts are not giving US officials the degree of deference they've grown accustomed to in this case under US law.

Megaupload once had servers around the world, but they were shut down in a coordinated raid on January 19, 2012. In the United States, the government quickly took possession of servers Megaupload had leased from Carpathia Hosting, copied the data they wanted from the hard drives, and then returned the servers to Carpathia. Carpathia has complained it lost thousands of dollars because it was not able to re-allocate these leased servers to another client.

The government wanted similarly unfettered access to the Canadian servers. But Megaupload objected. As Canadian Justice Gladys Pardu described Megaupload's position: "[T]here is an enormous volume of information on the servers... sending mirror image copies of all of this data would be overly broad, particularly in light of the scantiness of the evidence connecting these servers to the crimes alleged by the American prosecutors."

Justice Pardu sided with Megaupload, denying the government's request for full copies of the servers, which she described as "equivalent of that contained on 100 laptop computers." Instead, she ordered the United States and Megaupload to negotiate about which information the government should get access to under court supervision. If the parties are unable to reach an agreement, Justice Pardu herself will make the decision.

There are good reasons to worry about overly broad disclosures of electronically-stored data. When Ohio videographer Kyle Goodwin, who used Megaupload as a backup service, requested the return of files on the servers, the government responded by examining Goodwin's files. It found he had uploaded "music files with MD5 values that matched the hash values of pirated versions of popular music."

The Electronic Frontier Foundation's Julie Samuels argued that demonstrates "that if users try to get their property back, the government won't hesitate to comb through it to try to find an argument to use against them." Goodwin had not been suspected of any crime, so there was no reason his files should have been subject to scrutiny. The Canadian procedure is meant to ensure that the government only has access to evidence that's relevant to the Megaupload case.

New Zealand courts have also tried to rein in US access to information in the Megaupload case. Last summer, a judge ruled the search warrant used to raid Megaupload founder Kim Dotcom's mansion was invalid. Unfortunately, the US had already taken custody of some of Dotcom's hard drives and transferred them to the United States.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

The ruling is another sign that overseas courts are not giving US officials the degree of deference they've grown accustomed to in this case under US law.

Call me pedantic, but Canada isn't overseas from the US, no?

Edit: But yay Canada for at least thinking about the issue before just handing over the keys to the kingdom. Granted, sounds like Canada will still comply once the US Gov't has figured out what it wants specifically.

Second Edit: And apparently I've found at least one dictionary that states 'overseas' is colloquial for foreign country. The more you know.

God you people are idiots. I hope you all get shot by people who flee to Iran.

Seriously. YOU ARE NOT IMMUNE TO PROSECUTION IF YOU VIOLATE THE LAWS OF ONE COUNTRY AND THEN FLEE TO OR ARE WITHIN THE BORDERS OF ANOTHER COUNTRY.

There is this thing called an extradition treaty for this very purpose.

One of your previous posts already made me think you were a fool, I forget why now, but with posts as stupid as what you've said above you're not doing much to counter that impression.

Just a hint, since you obviously need one: we are aware of what an extradition treaty is, but you need to be aware that this isn't an automatic pass to get someone just need cause they committed a crime in your country. Some examples: Russia won't extradite someone to our country even though he's been accused of murder in our country (Litvinenko sp?), we didn't send Gary McKinnon to the U.S. despite their government being desperate to have someone to punish for their lax security and Ecuador won't extradite Assange to the U.K. from their embassy here...

Do you seriously think having an extradition treaty with a country automatically makes the citizens of each of those countries beholden to each other's laws? Are you that ridiculous?

Setting aside your obvious hatred from something I do not comprehend at all...

You are actually COMPLETELY immune to prosecution if you violate the laws of one country and then flee to or are within the borders of another country, if the country you flee to has different laws from yours.

Is this the same Canada that is usually listed as one of the major havens of piracy by the US?

Yeah, hard to see why they should do anything to help the US, beyond their minimum obligations under law.

And TitaniumDragon - if you start a post with "God you people are idiots. I hope you all get shot by people who flee to Iran," there's little point putting anything more afterwards. Very few people will read beyond that opening line. It's a notoriously bad debating tactic.

Setting aside your obvious hatred from something I do not comprehend at all...

You are actually COMPLETELY immune to prosecution if you violate the laws of one country and then flee to or are within the borders of another country, if the country you flee to has different laws from yours.

And, thank goodness for that.

The country could apply for extradition so you aren't TOTALLY immune.

That said, there is whole set of laws protecting citizens from wrongful extradition requests.

Obviously somebody screwed up their attempt to get Dotcom's extradited.

"United States government will only have limited, court-supervised access."

Government is going to limit itself? Last I looked, the courts are a part of the government.

So the translation of the quote is: Government will decide what government does.

As someone said above, read the article. This is a Canadian court deciding how much access US authorities should have.

More broadly, governments have to abide by the decisions of the courts. Hence in Australia, the 'Mabo' High Court decision overturned the principle of terra nullius and said that native title actually exists, the government has to deal with it, or that the government can't just ship refugees to Malaysia.

They then turned those hard drives over to the people who were prosecuting the case, the FBI.

The physical HD was, and still is, in possesion of NZ Police which FBI has supervised access to (in theory, it was later found that the police had handed the physical HD over to FBI without court knowledge).

The problem wasn't so much that they took the HD but rather they copied the contents of the HD without court knowledge.

NZ court is still trying to decide whether taking the contents (but not the physical HD) is legal or not. So as it stands, nothing really came out of it.

Unfortunately, the US had already taken custody of some of Dotcom's hard drives and transferred them to the United States.

"Taken custody"? The legality of all this is not confirmed, right? Doesn't that mean that they just stole the HDDs? As quickly as possible, of course, so nobody realised it was BS until too late?

Taken custody doesn't mean it wasn't stolen. Custody, generally at least, just means you have control or care of something.

Also, there's the fact that given the two court systems are slightly at loggerheads over this, the US could take custody, and New Zealand could find it was theft, and each would be right.

Even if it's legal, it's a dick move, though.

Yeah, it annoyed the presiding judge quite a bit when that happened. In addition, Judge positively ripped into the NZ Police for allowing it to happen as well.

I would not be surprised if MegaUpload gets to defend based on a break in the Chain of Custody. The evidence should have gone from the original location straight to the police evidence room. That did not happen instead it was taken to a hotel where copies were allegedly taken but who knows what really happened. Now you have doubt that the files on the drive were there when the drive was taken.

All in all a poor choice for extradition. Of course in the US all bets are off

In their defense, it is pretty standard to hand over evidence to the people prosecuting the case. Unless they did it deliberately in order to evade the court ruling (which I have seen no evidence of) there isn't really much you can do about it. Its not like they didn't have a valid search warrant at the time for the data.

If I remember correctly, the defence objected to the court handing over the material and FBI took the content while the court was deliberating on the issue. I do recall that the judge specifically told the prosecution not to take the data until the decision has been reached.

Is this the same Canada that is usually listed as one of the major havens of piracy by the US?

Yeah, hard to see why they should do anything to help the US, beyond their minimum obligations under law.

And TitaniumDragon - if you start a post with "God you people are idiots. I hope you all get shot by people who flee to Iran," there's little point putting anything more afterwards. Very few people will read beyond that opening line. It's a notoriously bad debating tactic.

Actually I think they are on the 301 special report mainly because the support FOSS. But I could be wrong.

As I tried to explain in another thread a while ago, Canadian judges do not take kindly to attempts at bullying them, even from our own government. They've been known to invalidate whole pieces of Gov. legislation when they see it as contravening existing human rights legislation. Canadian judges are not elected and once appointed are difficult to remove without substantial, just cause. This prevents political interference in legal proceedings.

This judge will be well versed in the relevant law for this case and will not be impressed or intimidated by U.S. LEOs or intimidated by our gov., if any pressure were to be applied there. It's one of the good things about our legal system. Judges aren't looking ahead to being re-elected or holding their positions in the future. They're generally ruling only based on the Law and relevant human rights legislation. U.S. LEOs will have no impact on court proceedings as they may have on local police officials. It's a necessary check/balance on police/gov. power and, usually, works fairly well.

Hopefully it will continue to do so. Canadian judges, generally, are quite keen legal minds and the Canadian SC has been strong in upholding existing, enshrined human rights legislation and privacy legislation. Sorry if this makes TD unhappy.

Late Edit: Also anyone looking for accurate information regarding this by an actual Canadian Barrister should note the comments on page 3.

Yeah, it annoyed the presiding judge quite a bit when that happend. In addition, Judge positively ripped into the NZ Police for allowing it to happen as well.

In their defense, it is pretty standard to hand over evidence to the people prosecuting the case. Unless they did it deliberately in order to evade the court ruling (which I have seen no evidence of) there isn't really much you can do about it. Its not like they didn't have a valid search warrant at the time for the data.

Of course, I'm not privy to the inner workings of the NZ police in international cases - are they supposed to wait X amount of time before doing it just in case someone might appeal? If there aren't any laws on the subject, the judge can be angry all they want, but there isn't any legal reason for them not to do it. It doesn't sound as if there is, though.

I don't think its a matter of time so much as a matter of the fact that the warrants were bad. Therefore the prosecution shouldn't actually have the evidence. Fruit of the poisonous tree and such

Unfortunately, the US had already taken custody of some of Dotcom's hard drives and transferred them to the United States.

"Taken custody"? The legality of all this is not confirmed, right? Doesn't that mean that they just stole the HDDs? As quickly as possible, of course, so nobody realised it was BS until too late?

Taken custody doesn't mean it wasn't stolen. Custody, generally at least, just means you have control or care of something.

Also, there's the fact that given the two court systems are slightly at loggerheads over this, the US could take custody, and New Zealand could find it was theft, and each would be right.

Even if it's legal, it's a dick move, though.

Yeah, it annoyed the presiding judge quite a bit when that happened. In addition, Judge positively ripped into the NZ Police for allowing it to happen as well.

I would not be surprised if MegaUpload gets to defend based on a break in the Chain of Custody. The evidence should have gone from the original location straight to the police evidence room. That did not happen instead it was taken to a hotel where copies were allegedly taken but who knows what really happened. Now you have doubt that the files on the drive were there when the drive was taken.

All in all a poor choice for extradition. Of course in the US all bets are off

The NZ Police unit in charge of the case doesn't exactly have a stellar reputation to begin with. They were caught on at least two occassions that I know of for using questionable tactics in attempt to secure prosecution.

TD: NZ has not filed any charges against KDC or MU nor do they seem willing to. So what exactly do you think he did wrong there? Also, copyright infringement is not enough to meet extradition requirements from NZ.

They then turned those hard drives over to the people who were prosecuting the case, the FBI.

The physical HD was, and still is, in possesion of NZ Police which FBI has supervised access to (in theory, it was later found that the police had handed the physical HD over to FBI without court knowledge).

The problem wasn't so much that they took the HD but rather they copied the contents of the HD without court knowledge.

NZ court is still trying to decide whether taking the contents (but not the physical HD) is legal or not. So as it stands, nothing really came out of it.

So they made a copy of the data. Aren't they then, in effect, arguing against themselves, by saying that because they didn't physically take the data disks, they didn't do anything illegal? One might even say they "pirated" the data.

They then turned those hard drives over to the people who were prosecuting the case, the FBI.

The physical HD was, and still is, in possesion of NZ Police which FBI has supervised access to (in theory, it was later found that the police had handed the physical HD over to FBI without court knowledge).

The problem wasn't so much that they took the HD but rather they copied the contents of the HD without court knowledge.

NZ court is still trying to decide whether taking the contents (but not the physical HD) is legal or not. So as it stands, nothing really came out of it.

So they made a copy of the data. Aren't they then, in effect, arguing against themselves, by saying that because they didn't physically take the data disks, they didn't do anything illegal? One might even say they "pirated" the data.

Sorry, couldn't resist.

The court ordered that they are not allowed to take the HD. Depending on the interpretation, it could mean physical HD or its content; which is what the court is having trouble deciding atm.

Is this the same Canada that is usually listed as one of the major havens of piracy by the US?

Yeah, hard to see why they should do anything to help the US, beyond their minimum obligations under law.<snip>

Actually I think they are on the 301 special report mainly because the support FOSS. But I could be wrong.

Actually, our own government ASKED them to put us on it, to make it easier for them to push through their draconian copyright bill.

"In 2009, Industry Minister Tony Clement’s policy director asked U.S. officials to add Canada to their Special 301 Priority Watch List—also known as the Copyright Blacklist and the Copyright Hall of Shame. They did, placing us alongside China, Russia and Pakistan as one of the world’s worst nations when it comes to piracy and bootlegging."http://www2.macleans.ca/2011/09/07/cana ... cklist-us/